FPSLREB Decisions

Termination (disciplinary) - Insubordination - Prison guard - Remedy - the grievor was a correctional officer employed in a medium security institution - her bargaining unit was in a legal strike position - the grievor occupied a designated position and was therefore precluded from participating in the strike - approximately 25 per cent of the correctional officers at her institution did not occupy designated positions - a picket line went up outside the institution on March 26, 1999 - the grievor reported for her shift on March 26 and was assigned to work in the control post - the institution was in a lock down situation due to a staff shortage arising out of the strike - management of the institution advised the inmate committee that prisoners would be allowed out of their cells for one hour - however, the correctional officers were not officially advised - when the grievor was directed by a supervisor to let the inmates for whom she was responsible out of their cells, she repeatedly refused to do so citing safety concerns - the grievor did not advise the supervisor of the specific nature of her concerns - however, she testified before the adjudicator that they related to the safety of the inmates rather than her own - the grievor also refused to leave her post when the supervisor ordered her to do so - ultimately the grievor complied with the supervisor's direction to allow the prisoners out of their cells after she spoke with another supervisor who was able to alleviate her concerns - the grievor was obliged to work a double shift as the employer did not relieve her from duty - at the expiration of her second straight shift on March 27, the grievor repeatedly enquired of the responsible supervisor as to when she would be relieved from duty and he repeatedly told her that relief was on its way - eventually, the supervisor stopped responding to her calls - because the grievor stopped responding to prisoners' pages, three supervisors went to her work area to investigate - the grievor then claimed she had been relieved from duty and ultimately left the institution although the supervisors repeatedly advised her that she was not to leave her post or the institution until she had been officially relieved from duty - the employer discharged the grievor for these actions - the adjudicator did not allow the employer to raise for the first time at the hearing the allegation that the grievor's actions were part of concerted action by the correctional officers who occupied designated positions to support the strike as this had not been referred to in the letter terminating the grievor's employment - the adjudicator concluded that the grievor had been insubordinate but that there were mitigating factors - as the grievor had not advised the supervisor of the nature of her safety concerns at the time of her refusals to release the prisoners from their cells on March 26, she could not rely on these concerns to justify her refusal to comply with his orders - however, a lack of communication on the employer's part had contributed to the problem - if the employer had advised the correctional officers in advance of its intention to release the prisoners from their cells for an hour (as it had done for the inmate committee), it would have been possible for the grievor to resolve any concerns which she had in advance - the adjudicator also found that the grievor was not insubordinate in refusing to leave her post despite the supervisor's order to that effect as, once she had complied with his order to release the prisoners, there was no longer any reason for her to leave her post - with respect to the grievor's actions on March 27 in leaving her post and the institution although she had not been officially relieved and despite having been specifically ordered not to leave by the supervisors, the adjudicator noted that, by then, the grievor had been on duty for more than 16 hours - he found that a failure of communication on the employer's part also contributed to this problem in that the supervisor should have given her specific information as to how long she would have to wait before being relieved from duty - in any case, the grievor did not actually leave her post unattended as there were three supervisors present - furthermore, the grievor did not have a history of insubordinate conduct - accordingly, the employer should have invoked the principle of progressive discipline - the adjudicator concluded that discharge was too severe a penalty under the circumstances and substituted a one-month suspension without pay or other benefits therefor. Grievance allowed in part. Cases cited:Pacific Press (1997), 69 L.A.C. (4th) 214; Dough Delight Ltd (1999), 74 L.A.C. (4th) 144; Green v. Canada (Treasury Board) , Court file A-542-97, March 27, 2000 (F.C.A.).